Assicurazioni Generali v. Black & Veatch
Eighth Circuit Court of Appeals
March 26, 2004

Marine Insurance: On July 20, 2000, a ship carrying the assureds' plant construction components departed Japan for the United States. No survey was conducted at loading. On July 24, 2000, the ship was caught in a typhoon, which caused severe damage to most of the components on board. The manufacturer replaced the damaged components at no cost, but they did not arrive until approximately six months after the originally scheduled delivery date. This delay resulted in additional costs of $38 million for the assureds.  Marine cargo underwriters sought judgment declaring no coverage because of a failure to comply with the policy' s survey requirement. The district court properly found that no survey was required and that the claim was covered under the policy's consequential loss provision. The policy failed to list the critical items that were subject to the survey requirement, nor were they properly added by a subsequent endorsement that lacked consideration.

Zyblut v. Harvey's Iowa Management
Eighth Circuit Court of Appeals
March 25, 2004

Jones Act/Seamen's Claims: Admiralty law does not preempt plaintiff seaman's claim under state law for wrongful discharge. Under Iowa state law, to prevail on a tort claim for a discharge in violation of public policy, an employee must show (1) a clearly defined public policy protected an activity; (2) the policy was undermined by discharging the employee; (3) the discharge was the result of engaging in the protected activity; and (4) there was no other justification for the discharge. The court concluded there was no clearly defined public policy protecting plaintiff's activity. First, federal maritime law does not provide a clear public policy against violating 46 U.S.C. § 8101 (addressing manning of vessels). Second, although Iowa recognizes a public policy against terminating an employee who refuses to violate the law, plaintiff never refused to falsify the vessel log books, nor did he complain to the Coast Guard. Further, plaintiff was not actually discharged, but voluntarily left his employment after continually, albeit reluctantly, violating the law.

In re Tetra Applied Technologies
Fifth Circuit Court of Appeals
March 25, 2004

Limitation of Liability Act:  Claimant was entitled to pursue his remedies in state court, although a federal limitation action was pending, where he stipulated as follows: (1) that Owner is entitled to and has the right to litigate all issues relating to limitation of liability in federal court; (2) that he would not seek in other federal or state courts any judgment or ruling on the issue of Owner's right to limitation of liability; (3) that he would consent to waive any claim of res judicata relevant to the issue of limitation of liability based on any judgment that the state court may render; and (4) that he would not seek to enforce any judgment or recovery in excess of $725,000 (the value of the vessel) pending the adjudication of the complaint of limitation of liability in federal court. Claimant was not required to stipulate that exoneration from liability issues, as opposed to limitation of liability issues, would only be heard in federal court. 

Delta Commercial Fisheries v. Gulf of Mexico Fisheries Management
Fifth Circuit Court of Appeals
March 19, 2004

Government Regulation: The commercial fishermen's association's suit alleging that the Gulf of Mexico Fishery Management Council does not include "fair and balanced" representation of commercial and recreational fishing interests as required by a provision of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.A. §§ 1801-1883, was properly dismissed by the district court since the United States has not waived sovereign immunity from such a suit under the Act.

Ocean Advocates v. Corps of Engineers
Ninth Circuit Court of Appeals
March 15, 2004

Government Regulation: The district court improperly granted summary judgment in favor of the Corps of Engineers on plaintiff environmental group's challenge to a permit issued to BP to build an addition to its existing oil refinery dock in Cherry Point, Washington. The Corps should have realized that uncertainty surrounded the potential for increased traffic based on the undetermined additional berthing capacity at the BP refinery, the magnitude of this change and its relationship to the increased risk of oil spills, and unknown, long-term projections for increased traffic and the risk of an oil spill. The Corps acted arbitrarily and capriciously in failing to gather this quantifiable data and in failing to take a "hard look" at the environmental impact of the dock extension. Further, if the modifications authorized by the permit increased the potential berthing capacity of the terminal for tankers carrying crude oil, it also violated the Magnuson Amendment to the Marine Mammal Protection Act, 33 U.S.C. § 476., which was an issue remanded to the district court.

In re MO Barge Lines
Eighth Circuit Court of Appeals
March 15, 2004

Collisions/Casualties: During the early hours of July 31, 2000, the Miss Belterra, a new casino vessel heading up the Mississippi River, collided with the Elizabeth Ann, a towboat pushing concrete barges down the river. The district court properly found that Elizabeth Ann's pilot violated Inland Navigation Rule 14 when he failed to propose the manner of passing as he was the downward vessel. It is mandatory that a downward vessel on the Mississippi River propose the manner of passage and initiate the maneuvering signals that will be used. Limitation of Liability Act:  To determine a vessel owner's entitlement to limit its damages, a court must determine (1) whether negligence or unseaworthiness caused the accident, and (2) whether the shipowner was privy to, or had knowledge of, the causative agent.  Unseaworthiness was not supported by the record since the pilot's decision not to increase the radar's range when he first noticed approaching lights was navigational error, rather than evidence of incompetence that would render the vessel unseaworthy. Further, the towboat owner was not in privity since it had hired a licensed, competent pilot to navigate its vessel and it was not on notice that the pilot would operate the vessel negligently. Owner could thus limit its liability.

Fanos v. Maersk Line
Fifth Circuit Court of Appeals
March 10, 2004

Jones Act (Penalty Wages): There are two prongs used to determine the application of the wage penalty statute: (1) whether the master or owner refused to pay wages within the specified period, and (2) whether this failure to pay was without sufficient cause. See also 46 U.S.C. § 10313.  Here neither prong was met since, first, the wages were not withheld by the master or owner, but by the union's vacation plan. Second, "without sufficient cause" means "either conduct which is in some sense arbitrary or willful, or at least a failure not attributable to impossibility of payment." Here there was sufficient cause since the wages were withheld pursuant to a memorandum of understanding between the union and the owner.

Maritime Torts:  Plaintiffs were severely burned in a fire that occurred while they were transferring petroleum from the CLARA P, a decrepit barge, to a truck that was parked dockside.  The fire was caused by the use of the portable pump instead of a vacuum truck to transfer petroleum from the barge to a truck.  The petroleum purchaser was properly found directly liable to plaintiffs since it knew that the pump on the CLARA P was out of operation and that a vacuum truck should be used to transfer the petroleum from the barge.  It also knew that the contractor it had hired did not have a vacuum truck but hired it anyway. Procedure: The Court of Appeals had appellate jurisdiction under 28 U.S.C. § 1292(a)(3), the admiralty interlocutory appeals exception.  The appellant's still pending claims for contribution did not preclude an interlocutory appeal pursuant to section 1292(a)(3) because its liability to appellees had been finally determined and was unaffected by the contribution cross-claim. 

Air Liquide v. Corps of Engineers
Fifth Circuit Court of Appeals
January 30, 2004

Government Regulation: The Army Corps of Engineers properly exercised its navigational servitude over underwater pipelines covered by permits under the  Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., requiring Owners to remove the pipelines at their expense as part of the project by the Corps and the Port of Houston Authority to widen and deepen the Houston Ship Channel.

Crear v. Omega Protein
Fifth Circuit Court of Appeals
January 26, 2004

Maritime Torts:  In support of a general negligence claim, a  plaintiff must establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty; (3) the plaintiff suffered damages; and (4) the breach of the duty proximately caused the damages.  Whether a defendant owes a duty to a plaintiff depends on various factors, and the primary indicator of duty is whether the harm suffered by the plaintiff was foreseeable.  Here the district court correctly granted summary judgment to defendant fishing vessel owner where a former employee who had suffered a head injury onboard murdered his grandmother 13 months later.  A reasonable employer in defendant's position would not have foreseen that its negligence in failing to properly affix a stern pole would cause an injured seaman to murder another person.

Spector v. Norwegian Cruise Line
Fifth Circuit Court of Appeals
January 12, 2004

Government Regulation:  Plaintiffs, disabled cruise line passengers, allege that physical barriers on Norwegian Cruise Line ships denied them access to: (1) emergency evacuation equipment and emergency evacuation-related programs; (2) facilities such as public restrooms, restaurants, swimming pools, and elevators; and (3) cabins with a balcony or a window.  Pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182 et. seq., plaintiffs sought injunctive relief requiring Owner to remove certain barriers that obstructed their access to the ships’ facilities.  The plaintiffs' barrier removal claims were dismissed since Congress, in enacting Title III of the ADA, failed to express any intention to subject foreign-flagged cruise ships to its dictates. Thus, application of Title III to foreign-flagged cruise ships is impermissible.